A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).
A demurrer is brought under the Code of Civil Procedure (CCP) § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (CCP § 430.10(f).)
Grounds for a demurrer include lack of jurisdiction, lack of legal capacity to sue, another action pending between the same parties on the same cause of action, a defect or misjoinder of parties, failure to state facts sufficient to constitute a cause of action, uncertainty, or, if the action is found on a contract, failure to specify if the contract is written, oral, or implied by conduct. (CCP § 430.10(a)-(g).)
In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)
And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (Warren v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 19 Cal.App.3d 24, 36; CCP § 92(c).)
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)
CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)
CCP § 430.40(a) requires a defendant to file a demurrer not more than thirty days after being served with the summons and complaint.
Defendant B&H Inglewood Tow, Inc.’s Demurrer to Complaint is SUSTAINED with thirty (30) days leave to amend.BackgroundOn December 5, 2017, Plaintiff Regina Streets (“Plaintiff”) filed a complaint against Defendant B&H Towing (“Defendant”). On April 3, 2018, Defendant filed the instant demurrer to complaint. No opposition has been filed.Legal StandardA demurrer is a pleading used to test the legal...
..cts that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking...
May 16, 2018
Georgina Torres Rizk or Jon R. Takasugi
Los Angeles County, CA
Nature of Proceedings: Demurrer TENTATIVE RULING: For the reasons set forth herein, the demurrer of defendant Richard Goodfriend to the complaint is overruled. Defendant shall file and serve his answer to the complaint on or before December 20, 2017. Background: On June 18, 2015, defendant Richard Goodfriend aka Rick Goodfriend entered into a written month-to-month tenancy agreement with plain...
.. On November 21, 2017, Friendship Manor filed this complaint in unlawful detainer against Goodfriend. Goodfriend now demurs to the complaint on the grounds that the notice is insufficient in violation of Government Code section 12955, that there is not good cause to terminate the tenancy, there is medical necessity, and that the summons is defective. Friendship Manor opposes the demurrer. Anal...
Dec 15, 2017
Santa Barbara County, CA
Nature of Proceedings: Demurrer to First Amended Complaint TENTATIVE RULING: Based upon the failure of the demurring party to meet and confer as required by Code of Civil Procedure section 430.41, the demurrer of respondent City of Santa Barbara is stricken and ordered off calendar. City shall file and serve its answer to the first amended petition on or before July 31, 2017. The demurrer of res...
..e Section 430.41. Mr. DeNiro replied back to me by email that same day notifying he could not hear my voicemail. I responded back by email on May 12, 2016, [sic] advising him that I was going to be filing this demurrer, and advised him of the grounds for the demurrer.” (Doimas decl., ¶ 3.) “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or b...
Jul 14, 2017
Santa Barbara County, CA
Defendants Ryan Oh, Rory Real Estate, Inc., and Wilshire Real Estate, INc.’s Demurrer to the Complaint is OVERRULED.DEMURRERA demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) A court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of...
..(2007) 147 Cal.App.4th 740, 747 (“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”))“In determining whether the complaint is sufficien...
Jun 14, 2018
Los Angeles County, CA
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT JOSEPH VINCENT CASTAGNA, Plaintiff(s), vs. CITY OF LOS ANGELES, ET AL., Defendant(s). Case No.: 18STCV06586 [TENTATIVE] ORDER SUSTAINING DEMURRER WITH LEAVE TO AMEND; TAKING MOTION TO STRIKE OFF CALENDAR AS MOOT Dept. 3 1:30 p.m. April 16, 2019 Allegations of the Complaint Plaintiff, Joseph Vincent...
..because of the malfunctioning light. History of Demurrer The parties agreed to extend Defendant’s time to respond to the complaint until 1/17/19. On 1/15/19, Defendant attempted to file a demurrer and motion to strike directed at the complaint. For reasons that are not clear, the demurrer and motion were never actually placed into the court file. On 1/30/19, Plaintiff filed opposition to the dem...
Apr 16, 2019
Personal Injury/ Tort
Los Angeles County, CA
Motion: Defendant Miller’s Demurrer to ComplaintTentative Ruling:To overrule defendant Miller’s demurer to the entire complaint. (Code Civ. Proc. § 430.10, subd. (e).)Explanation:First, defendant’s notice of demurrer and demurrer are defective, in that they do not cite to the specific portion of the demurrer statute on which they rely to support the demurrer. Defendant merely cites to Code of Civi...
..tion 430.10. Those grounds include lack of jurisdiction, lack of legal capacity to sue, another action pending between the same parties on the same cause of action, a defect or misjoinder of parties, failure to state facts...
May 08, 2017
Fresno County, CA
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